On Tuesday, December 18, 2018, the Federal Commission on School Safety, established by the Trump administration following the mass shooting at the Marjory Stoneman Douglas High School in Parkland, Florida, made public its non-binding recommendations noting that, “[i]mplementation of the practices identified in [its] guide is purely voluntary, and no federal agency will take any action against schools that do not adopt them.”

Predictably, U.S. Secretary of Education Betsy DeVos noted that one of the report’s recommendations encourages schools “to seriously consider the option of partnering with local law enforcement in the training and arming of school personnel.” Another predictable recommendation is to roll back Obama administration school-discipline guidance that placed an emphasis on tracking school disciplinary actions by race in order to help ameliorate disparities in how suspensions or expulsions are doled out.  

The commission also recommended that Congress update the Family Educational Rights and Privacy Act (FERPA). The report avers that confusion regarding the application of FERPA can hinder the ability of schools and law enforcement to prevent shootings and other violence. For example, the report suggests that, in its current state, FERPA generally prevents schools from sharing students’ educational records with third parties without parental consent and that “[i]t is critical to recognize that some education records may contain information that, if disclosed to appropriate officials, could help prevent students from harming themselves or others.” Further, the report also recommends that the U.S. Department of Education (USDE) clarify how schools should apply FERPA’s existing provisions during safety emergencies. The report similarly recommends that the U.S. Department of Health and Human Services review laws and guidance related to the sharing of sensitive health information to help health care providers to share information regarding those who may be a safety threat in schools.

With regard to FERPA, the report also supports the notion that personnel such as a school resource officer be considered a “school official” and/or an “appropriate party” as an exception under the law and that such an officer could thus disclose personally identifiable information from a student’s educational record without parental consent to individuals determined to have a “legitimate educational interest” in such information when ensuring the health and safety of those within the school environment. The report also recommended that USDE provide technical assistance to schools specifying what they may disclose to such staff members with regard to relevant disciplinary information about students. The report also recommends USDE guidance be provided in certain circumstances, such as wide-ranging natural disasters or events that disable a school district’s data or communication centers, allowing a state department of education to invoke FERPA’s health and safety emergency exception to disclose students’ personal information on behalf of a school district that cannot do so itself.

The report also addresses the issuance of school surveillance footage with local law enforcement units and recommends that districts create a “media plan” to disseminate information in the event of a shooting.

The report further recommends analysis of the Health Insurance Portability and Accountability Act (HIPAA) to help facilitate greater coordination between mental health providers, school personnel, and law enforcement.

Whether or not the federal government looks at revising FERPA remains to be seen, since previous such efforts have not come to fruition.